You have two choices in challenging your current or former employer’s unfair labor practices:
- File a claim with the Labor Commissioner
- File a lawsuit in court
Which one is better? The answer really depends on the circumstances. We help employees with both Labor Commissioner claims and lawsuits and select the option that is the most advantageous.
Our senior attorneys have been nominated as Super Lawyers – Rising Stars, an acknowledgment that is received by the top 2.5% of attorneys – that means 97.5% of other Southern California attorneys do not qualify.
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Labor Commissioner Claims
The Labor Commissioner enforces California wage and hours laws through an expedited and simplified administrative procedure that can lead to a quick resolution of your case, though not necessarily one that maximizes the value of your case.
The Labor Commissioner enforces California wage and hours laws through an expedited and simplified administrative procedure that can lead to a quick resolution of your case, though not necessarily one that maximizes the value of your case. This quicker and informal procedure also means that, unlike in court, you will likely not be able to force the employer to produce documents or force a witness to testify, which is sometimes needed for you to prove your case or to disprove something that the employer may claim.
Another disadvantage of the Labor Commissioner procedure is that it is limited to only wage and hour claims whereas a lawsuit can include other related and potentially valuable employment and non-employment claims (harassment, discrimination, retaliation, wrongful termination, personal injury, assault and battery, etc.). This means that the potentially strong wage and hour claims may be separated from other potential claims that are much more challenging to prove. Thus the wage and hour claims cannot serve as a foundation and support for the related employment claims being pursued separately in court.
The other significant disadvantage of Labor Commissioner claims is that they can only “look back” three years from the date of filing of the claim, which means you cannot recover any damages beyond those three years. In court, on the other hand, you can “look back” four years from the date of filing of the complaint.
Undocumented workers (workers “without papers”)
Regardless of his or her immigration status, a California employee has the right to be paid for his or her work. Undocumented workers are covered by all of California’s wage laws. The Labor Commissioner will accept claims filed by undocumented workers and will not ask questions about a worker’s immigration status. Like U.S. citizens, lawful permanent residents (or green card holders) and others authorized by the U.S. government to work in the United States, an undocumented worker has:
- The right to be paid the minimum wage
- The right to a 10-minute rest period
- The right to a meal period
- The right to file a workers’ compensation claim after sustaining a job-related injury
- The right to be provided all of the tools necessary to his or her work
- The right to a pay stub (or wage statement) every time he or she is paid his or her wages
- The right to be paid every time his or her employer asks him or her to report to work
- The right to be paid all wages by his or her employer the same day he or she is terminated
- The right to be paid all wages by his or her employer within 72 hours of a voluntary quit
In theory, the Labor Commissioner procedure is simplified and designed to permit you to represent yourself, but in reality you should get an attorney for any significant claim so that you can be prepared for the hearing and able to maximize your award.
Generally speaking, filing a claim with the Labor Commissioner makes sense for you in smaller cases (or in larger cases where there are no other valuable employment claims), where you have documents and witnesses that can support your case, and where you are not losing significant potential recovery due to the three-year cutoff. In theory, the Labor Commissioner procedure is simplified and designed to permit you to represent yourself. In reality, you should get an attorney for any significant claim so that you can be prepared for the hearing and able to maximize your award.
Procedures for wage claim processing
An employee alleging the non-payment of wages or other compensation by his or her employer must first file a claim at a local office of the Division of Labor Standards Enforcement. After the claim is filed, it is assigned to a Deputy Labor Commissioner (or deputy). The deputy will then evaluate the claim and take the following action: schedule a conference to discuss the claim with all of the parties, refer the matter to a hearing for adjudication of the claim, or dismiss the claim. In most instances, the matter will first be scheduled for a conference. If the matter cannot be resolved at the conference level, the deputy will determine the appropriate action with regard to the claim, usually by referring the matter to a hearing or dismissing the matter if there is no legal basis to proceed. If a claim is very complex and involves a large number of employees and records, it may be investigated by the Division of Labor Standards Enforcement’s Bureau of Field Enforcement. If this occurs, the employee and employer will be informed by the deputy handling the case. However, in most instances, claims filed with the Division of Labor Standards Enforcement are resolved through conferences and/or hearings.
If the deputy assigned to the claim decides to hold a conference, he or she will provide the parties (employee and employer) with a Notice of Claim and Conference (Notice). The Notice will inform the parties of the claim, provide the date, time and location of the conference, and provide the parties with specific instructions. The purpose of the conference is to evaluate the employee’s claim. Though the conference will be conducted informally, both the employee and employer should be prepared to talk with the deputy about the claim, including whether there are any witnesses and/or documents that will support their respective positions. If the employee’s claim has arguable merit, the deputy will encourage the parties to engage in settlement discussions. If the parties cannot agree to a settlement, the deputy will refer the matter to an administrative hearing.
The hearing (“berman” hearing)
The Berman hearing procedure is designed to provide a speedy, informal, and affordable method of resolving wage disputes. The hearing is conducted by a hearing officer. Although Berman hearings are conducted in an informal setting, they are formal proceedings. This means that parties and witnesses testify under oath, and the hearings are recorded. Additionally, each party has the right to present evidence, to present witnesses, to cross-examine (question) the opposing party and witnesses, and to submit evidence in support of a claim or defense.
The order, decision or award
Within 15 days after the Berman hearing is concluded, the hearing officer will prepare, file and serve a copy of his or her order, decision, or award. The hearing officer’s order, decision or awarded will include a summary of the hearing and the reasons for his or her decision, and must advise the parties of their right to appeal.
Labor commissioner appeals
After the Labor Commissioner issues a decision (which is also called an order or award), either the employer or employee may appeal that decision in court. This appeal is actually a completely new trial where the court does not look at or rely on the decision of the Labor Commissioner, although testimony given and recorded at the Labor Commissioner hearing may be used in court.
The employer must appeal within 10 days from the service of the decision and must post a bond with the court in the amount of the decision. The employer is liable to the employee for attorneys’ fees incurred as long as the employee gets at least $1 on appeal.
On the surface it may look as if the Labor Commissioner decision is worthless because it can be easily appealed to a court. However, due to the bond requirement and your ability to recover attorneys’ fees, the appeal of a Labor Commissioner decision is quite risky for an employer and is likely to lead to an award of significant amount of attorneys’ fees against the employer if you prevail on any of your claims.
Labor Commissioner Collections
A decision of the Labor Commissioner that is not appealed gets sent to the local court, gets entered as a judgment, and has an effect equal to that of a court judgment. Unfortunately, a judgment is just a piece of paper entitling you to money from your employer because the court does not actively help you collect any money.
When awarded a judgment, you yourself can attempt to collect the amount owed, or you can assign the collection of the judgment to the Division of Labor Standards Enforcement. The DLSE is currently underfunded and has very limited manpower to attempt to collect on judgments. Hiring a collection attorney, or having the attorney who represented you in the Labor Commissioner hearing, may lead to faster results.
Court cases are more complex and time consuming but generally lead to higher recovery for the employee. An employee can recover for violations going back four years from the date of filing (rather than just three before the Labor Commissioner), can combine various employment claims into one lawsuit (rather than being limited to just wage and hour claims), can file cases jointly with other employees who jointly support each other (rather than having to file individually), and can conduct extensive discovery (rather than relying on the Labor Commissioner’s permission to perform any limited discovery).
California employers face a daunting array of compliance issues every single day. At the Law Office of Arie Ebrahimian, we advise employers on compliance, so they can give their employees the best working environment possible, and litigation avoidance, so they can protect their bottom line and the interests of their workforce. Given the short amount of time an employer is afforded to evaluate a complaint for wages and other compensation by an employee with the Labor Commissioner, an employer who is facing a Labor Commissioner complaint is strongly encouraged to be prepared to settle or secure a dismissal of the complaint at the settlement conference before the matter is referred to an administrative hearing.
Entrust Your Case to E&l, Llp
If you have been wrongfully mistreated by your employer, contact E&L, LLP, at (213) 306-5868, for a free case evaluation and consultation.
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